83 F1d 241

Under Rev. St. § 824, an attorney's fee of $2.50 for each deposition Is not taxable until the deposition has both been taken and admitted in evidence.

This was a suit in equity by Alfred L. Barnardin against William H. Northall and others. The cause was heard on defendants' motion to strike the amended bill from the files. Church & Church, for complainant. Robert H. Parkinson, for defendants. BAKER, District Judge. On September 28, 1897, leave was granted complainant to file an amended bill on payment of "all the costs of the suit to date." The costs taxed by the clerk were paid, and the amended bill was filed. The defendant now moves to strike the amended bill from the files because an attorney's fee of $2.50 was not taxed and paid upon each deposition that was taken in the cause. The dnly depositions in the' cause were taken by the complainant. They have never been admitted in evidence upon a hearing before the court or a master in chancery. There has not been any hearing of the cause. They have never been offered in evidence. They have not even been published. It is impossible for the court to say whether they would have been published 01' offered in evidence if the cause had proceeded under the original bill. The statute is as follows: ". · · For each deposition taken and admitted in evidence in a cause, two dollars and fifty cents." Rev. St § 824. It was held by this court in Indianapolis Water Co: v. American Straw-Board Co., 65 Fed. 534, that under this statute attorney's fees on depositions are allowable only when there is "a concurrence of three things, viz.: (1) There must be a deposition; (2) it must have been taken in a cause; and (3) it must have been admitted in evidence therein." The contention of the defendant is that, when a deposition is "taken," it is "admitted in evidence." If such were the case, the words "admitted in evidence" would be mere surplusage. It is a rule in the construction of statutes that effect shall, if possible, be given to every part of It is evident that congress meant by the words "admit· ted in evidence" something more than the mere taking of a deposi tion. An attorney's fee on depositions is not taxable until they are both taken and admitted in evidence. The admission of deposi. tions in evidence involves an exercise of judicial functions which are not vested in an examiner or other ministerial officer. These depositions mayor may not be legally entitled to be admitted in . evidence. If a fee were taxable for the taking of a deposition, it might be contended that another fee would be taxable when the deposition is thereafter admitted in evidence. But it is plain that a single fee is taxable for a single deposition, under the conditiOnS
83F.-16

24·2

1l'ltDERAL REPORTER; ,"

which are prescribed . by the statute... The fee is annexed to the deposition under thoseconditiolls.· / When' the costs were taxed in this case, the, ,statutQry<:o:I;lditions, had nOF been complie? wit.h. The depositions had been taken, but they had not been admItted III evidence. Attorney's fees upon them were, therefore, not taxable, and the taxation by the clerk Wl.ij'l correct. '1,'he motion of the 'defendant to strike the amended bill from the files is according11' 'overruled.
. (Circuit Court, S. D. New York. November 12, 1897.)
"

CAREY v. ROOSEVELT et aI. , : ,. .

1.

EXECUTORS AND

While, In general, a judgment against executors or administrators c. t. 11. Is 119t binding on legatees whe,n the suit is commenced or revived after the adIiifnl,strators' accounts have been settled, and all the property in their harins paid over to the legatees and trustees under the will, pursuant to a voluntarily asdecree of the proper court, yet it Is so binding if the sumed the expense of defending the action, made privies to It, and had the same benefits In connection therewith Q.s if they had been . named as defendants.

2.

LIMITATION OF AOTIONS""':ACTION ON JUDGMENT.

If an actJonon a judgment is not itself barred by the statute of limitations, the fact that the original claim which is merged in the judgment was so " , barred Is Immaterial.

8.

LACHES-AcTION ON, JUDGMENT-DEMURRER,'

In a suit on a judgment the alleged laches ot the complainant In prosecuting the original action, if avail'tble at all, cannot be considered on demurrer, If the bill excuses the delay and imputes it to thos" who defended that action.

This was a suit in equity by GeorgeG. Carey, as trustee, etc., against John E. Rooseveffandothers,tlstrustees and legatees under the will of Amos Cotting,· deceased, to enforce payment of a judgment previously rendered againstthe administrator c. t. a. of said Ootting's estate.' The cause was heard on detnul'l'er to the amended bill.
The demurrer to the original bill was sustained and the complainant had leave to amend. ,(81 Fed. 608, where the principal facts are stated:) Thereafter the complainants. filed an amended, bill. Among' other new' averments are the following: "And your orator further: sliYs that, ll.s he is informed and believes to be true, the. defense of the said action at Ia W' was conducted, and all proceedings therein were taken; by the said' defendants Roosevelt and Schermerhorn, with the knowledge and consent,and afthe instance and request, of the other defendants, beneficiaries -under said will, to wit, the defendants, J. Egmont Schermerhorn, as ,executor Elizabeth Cotting, deceased, and Jameson Cotting and Katie T. Schermerhorn individually, and of the defendants, John'E,..Roosevelt and W. Enllen. Hoosevelt, as trusteeis' of the trusts created by the said will of Amos Catting for the benefit of Elizabeth Cottlng, deceased, and of the said defendants, Katie T.'SchermerhoTll anti'Jameson Cotting, and that such defense was .benefit of the said trust estate .and of the said cOllducted bY tllew for the proportion of the expenses of such detrustee.s anf}, benefidaries, Thatfl\ their attorneys and counsel, and including also the fense, mcludmg, , expimses and counsel fees incIdellt to the proceeding in the surrogate's court hereinafterreferred,to,,,wasborne,by the said trustees and paid by them out of the trust .8.ACjlt the amount thereof was charged by them ratably against the shares of the sa1dbenefici!lries therein, who conSented thl?reto and severally paid. or cOJ'lsellted 'to sucb: payment of, thechllrges so madlhlgaim,t their re&p ctive ratable shares in the tl'UBt funds; and:that said trustees and bene-